State v. Perry

• Decision Date: 19 May 1981
• Docket Number: No. 808SC1038,808SC1038
• Citation: 52 N.C.App. 48,278 S.E.2d 273
• Parties: STATE of North Carolina v. Ulysees PERRY.
• Court: North Carolina Court of Appeals

Page 273

278 S.E.2d 273

52 N.C.App. 48

STATE of North Carolina v. Ulysees PERRY.

No. 808SC1038.

Court of Appeals of North Carolina.

May 19, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

John W. Dees, Goldsboro, for defendant-appellant.

WHICHARD, Judge.

Defendant's first assignment of error relates to the denial of his motion for a mistrial. During cross-examination the witness Woodrow Williams testified, without objection: "As to whether anybody has ever threatened me with prosecution in this case, I have been threatened today. As to whether anybody ever threatened to bring charges against me for receiving stolen property, no they have not." The district attorney subsequently asked Williams on redirect: "Mr. Williams, you stated on cross examination you had been threatened?" The witness answered: "I have." Defense counsel's objection was then sustained. No motion to strike the answer was made, however. A voir dire hearing was conducted during which Williams stated that a woman in the courtroom had told him, about half an hour earlier, "You are going to die tonight." The woman was identified by Williams and was taken into custody. Defense counsel denied any involvement by the defendant and moved for a mistrial. The motion was denied. The trial court offered to instruct the jury to disregard any question (presumably including defendant's own questions on cross examination) relative to whether the witness had been threatened in any way. The court stated: "I will give you the option of requesting instructions as to whether or not they should disregard those questions and any testimony relative to it." The defendant declined to request any instructions, however.

Defendant now argues that a mistrial should have been allowed, because the events at trial "inevitably caused the jury to conclude that the defendant was somehow responsible for an attempt to intimidate or tamper with a witness." We disagree. "A mistrial is appropriate only for serious improprieties which render impossible a fair and impartial verdict under law." State v. Chapman, 294 N.C. 407, 417-418, 241 S.E.2d 667, 674 (1978). "(A) motion for mistrial in cases less than capital is addressed to the trial judge's sound discretion, and his ruling thereon (without findings of fact) is not reviewable without a showing of gross abuse of discretion." State v. Daye, 281 N.C. 592, 596, 189 S.E.2d 481, 483 (1972). In this case there was no indication before the jury of any impropriety on defendant's part. The same or similar testimony had already been admitted on cross examination pursuant to questions by defendant's own counsel. Further, defendant declined the opportunity to request any instructions he desired regarding the matter; and it is thus difficult for him to show any prejudice deriving therefrom. Defendant's first assignment of error is overruled.

Defendant next contends the evidence was insufficient to convict as a matter of law. He argues that the State failed to show that the heaters were taken without permission since it presented only one of the three trustees who constituted the ruling body of the church and were in charge of church property. The testimony of trustee Mildred Carlton was, however, sufficient evidence to permit the jury to find that the heaters were taken without consent. The State's failure to call the other trustees went to the weight, not the sufficiency, of the evidence. Defendant also argues that although the State's evidence tended to show that the church would normally have been used for services on 18 May 1980, following sale of the heaters to Williams on 16 May 1980, there was nonetheless no evidence of a break-in at the church until 19 May 1980. He contends that the evidence thus tended to show that the heaters were not taken pursuant to a breaking and entering. Since defendant was acquitted of breaking or entering and since the felonious larceny verdict must be vacated as hereinafter discussed, however, the absence of evidence that the break-in occurred prior to 19 May 1980 cannot have prejudiced defendant.

Defendant has brought forward three assignments of error dealing with the court's instructions to the jury. First, he excepts to the following instruction:

Now, under our system of justice when a defendant pleads not guilty he is not required to prove his innocence. The defendant is presumed to be innocent. This presumption goes with him throughout the trial and until the state proves to you that the defendant is guilty beyond a reasonable doubt.

Defendant argues that the court erred by failing to instruct that the presumption of innocence remains with a defendant "until that moment that the twelve agree on the verdict of guilty and for not one moment less." "(T)he court did clearly instruct the jury that defendant was presumed to be innocent and that the burden was on the State to prove him guilty beyond a reasonable doubt." State v. Geer, 23 N.C.App. 694, 695-696, 209 S.E.2d 501, 502 (1974). If defendant desired elaboration, he should have requested it. State v. Tipton, 8 N.C.App. 53, 173 S.E.2d 527 (1970). Second, defendant excepts to the court's statement of his contentions. "A misstatement of the contentions of the parties must be brought to the court's attention in apt time to afford opportunity for correction in order for an exception thereto to be considered on appeal, unless the misstatement was so gross that no objection at the trial was necessary." State v. Lankford, 28 N.C.App. 521, 526, 221 S.E.2d 913, 916 (1976). Defendant did not object below to the statement of his contentions, and we find no "gross" misstatement of his contentions in the instructions given. Third, defendant excepts to that portion of the instructions in which the court admonished the jury that all of the evidence was important, and that the jury should remember and consider all of the evidence. He contends the court failed to explain that "the lack of evidence ... can be just as important as the existence of evidence." The court had instructed, however, that the State must prove defendant guilty beyond a reasonable doubt and that a reasonable doubt could arise "out of the evidence or the lack of evidence or some deficiency in it." (Emphasis supplied.) In view of this instruction, we find no error prejudicial to defendant in the court's failure to refer further to the lack of evidence in the portion of the instructions complained of.

Defendant correctly contends the felonious larceny conviction is inconsistent with the acquittal as to breaking or entering.

Our courts have repeatedly held that where a defendant is tried for breaking or entering and felonious larceny and the jury returns a verdict of not guilty of felonious breaking or entering and guilty of felonious larceny, it is improper for the trial judge to accept the verdict of guilty of felonious larceny unless the jury has been instructed as to its duty to fix the value of the property stolen; the jury having to find that the value of the property taken exceeds $200.00 for the larceny to be felonious.

State v. Keeter, 35 N.C.App. 574, 575, 241 S.E.2d 708, 709 (1978), and cases cited. G.S. § 14-72 was amended, effective 1 January 1980, to increase from $200 to $400 the value which stolen property must exceed in order to constitute a felony. 1979 Sess. Laws, ch. 408. The $400 figure is applicable here, since the larceny charged occurred in May 1980. The larceny count of the indictment stated the value of the stolen property as $750; however, the evidence tended to show that the heaters were worth only $75 each. The court did not instruct the jury to fix the value of the stolen property and did not submit an issue of misdemeanor larceny. The felonious larceny conviction must therefore be vacated, and the case must be remanded for entry of a sentence consistent with a verdict of guilty of misdemeanor larceny. Keeter, 35 N.C.App. 574, 241 S.E.2d 708; see also State v. Cornell, --- N.C.App. ---, 275 S.E.2d 857 (1981).

Absent our holding with regard to defendant's final contention, the failure to instruct the jury to fix the value of the stolen property and to submit an issue of misdemeanor possession would likewise require vacating the felony possession conviction and remanding for entry of a sentence consistent with a verdict of misdemeanor possession pursuant to G.S. § 14-72(a). Our holding with regard to defendant's final contention, however, requires remand for entry of a judgment of dismissal. Defendant finally contends that "(p)ossession of stolen property is an element of larceny (and) (t)hus both convictions cannot be sustained." This contention presents the question of whether the defendant can be convicted both of the larceny of property and of the possession of the same stolen property which was the subject of the larceny. We hold that he cannot.

We so hold, first, because "(i)t is our authority and duty ... to apply a valid statute so as to give it the meaning and effect intended by the Legislature at the time of its enactment," State v. Williams, 286 N.C. 422, 430, 212 S.E.2d 113, 119 (1975); and we do not ascribe to the General Assembly, in its creation of the possession offense, the intent to effect such exposure to dual punishment for the same offense. The 1977 General Assembly amended G.S. § 14-72(a) by inserting the words "or the possessing of stolen goods knowing them to be stolen," thereby creating the offense of misdemeanor possession of stolen goods. 1977 N.C.Sess.Laws ch. 978 § 2. It also enacted G.S. § 14-71.1, creating the offense of felony possession of stolen goods. 1977 N.C.Sess.Laws ch. 978 § 1. We ascribe to both enactments the legislative purpose set forth with regard to G.S. § 14-71.1 in State v. Kelly, 39 N.C.App. 246, 249 S.E.2d 832 (1978), viz., "to provide protection for society in those incidents where the State does not have sufficient evidence to prove who committed...